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[2013] ZAFSHC 198
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Engen Petroleum Limited v Vlok Petroleum CC and Engen Petroleum Limited v Jacques Vlok Transport CC and Another (1310/2011 , 3110/2010) [2013] ZAFSHC 198 (22 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
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Case No: 5432/2011
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LTD
t/a STANDARD BANK VEHICLE AND ASSET
FINANCE
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Applicant
and
DAVID DE RANDT
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Respondent
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NOTES
[1] This is an
application for an interim interdict pending the outcome of the trial
which has been set down for hearing on 11,
12 and 14 February 2014.
The applicant claims delivery of a motor vehicle which was sold to
the respondent in terms of an instalment
sale agreement. The
respondent denies that he is in arrears with his instalments and
denies that applicant will suffer prejudice
because the vehicle is
comprehensively insured, also, in terms of the rejoinder, for credit
shortfall.
[2] An instalment sale
agreement was concluded on 30 May 2006 in terms whereof respondent
bought an Audi A8 Quatro for R689 820,10.
The total collectible
amount was R899 778,02. The respondent had to make 59 monthly
instalments of R12 548,78 and a final
instalment of R159 400
on 18 May 2011, which was also the expiry date of the agreement.
[3] The applicant alleges
that the respondent failed to pay the monthly instalments punctually.
The applicant attaches a history
of payment as annexure “FA4”
(page 25) from which it appears that there were several unpaid debit
orders. The respondent
says he paid the instalments punctually until
he applied for debt review on 7 July 2008. Respondent says he was not
in default
with his payments under the instalment sale agreement when
he applied for debt review (AA page 45).
[4] Applicant attaches a
certificate of balance which states that as at 18 June 2011 the
outstanding balance on the amount was R627 608,10
with interest
at 7,079% from 18 June 2011. The respondent denies the correctness of
the certificate of balance.
[5] The order of the
Bloemfontein Magistrate’s court dated 19 August 2010 declaring
the respondent over-indebted is attached
as annexure “FA6.6”.
The debts of the respondent to Nedbank, Standard Bank, Absa Bank,
Norton ________ attorneys and
Edgars are restricted as shown on
annexure “FA6.2”. The form states that the amount
available to repay debt is R29 640
(after the 5% commission of
the debt counsellor has been substandard). That amount of R29 640
is then distributed by my instalments
between the creditors mentioned
above. The debt on the restricting schedule (page 13) which
apparently relates to this vehicle
is one where the outstanding
balances given as R769 199 (of an “unknown” account
number), and the debt is to be
repaid in 250 instalments of R8 793,23
up to 25 June 231. By 2031 the vehicle will have achieved vintage
status, if it still
exists. It is difficult to understand how an
order was made by the magistrate, by consent, providing for payments
over 20 years
for a motor vehicle. It is more difficult to understand
how the bank allowed such order. I would have expected the debt
councillor
to try to arrange that the over-indebted debtor got a
smaller or older car, not a luxury Audi A8 costing nearly a million
rand.
[6] On 25 February 2011
the applicant’s attorneys wrote a letter to the respondent
giving him notice of termination of the
debt review process in terms
of section 86(10) of the National Credit Act. The respondent did not
respond to that notice and applicant
issued summons claiming
cancellation of the instalment sale agreement and return of the
vehicle. In the amended particulars of
claim applicant alleges that
the instalment sale agreement has been cancelled, alternatively that
the plaintiff (applicant) concedes
it in the summons.
[7] In his opposition to
the Summary Judgment application the respondent contended that he was
declared over-indebted and his obligations,
including his obligations
to the applicant were restructured (Trial Bundle, page 38). In the
affidavit opposing Summary Judgment,
the respondent says that due to
the transfer of his file between debt review counsellors, certain
payments were not made to the
applicant (page 39, subsection 4.11).
He says defendants’ payment were not caused by him. The
respondent further contends
that the applicant was not entitled to
terminate the debt review process because it cannot be terminated
under section 86(10) after
a debt review order has been made (page 41
subsection 5.4). The respondent says that the applicant must comply
with section 88(3)
before it can sue him (page 41 subsection 5.4).
[8] The applicant says
this is a quasi-vindicatory action and it therefore need not allege
irreparable harm or the existence of
an alternative remedy, which the
respondent denies without further expanding (page 39 subsection 4.9).
[9] The requirements for
an interim interdict are:
(i) a
prima facie
right, which means that serious doubt is not cast upon applicant’s
claims:
(ii) the absence of
another suitable remedy;
(iii) well-grounded
apprehension of harm should the interim relief not be granted and
should the applicant ultimately succeed on
establishing its right.
(v) the balance of
converse should favour the applicant.
Webster v Mitchell
1948 (1) SA 1186
(W) at 1188.
[10] Mr Roux, for
applicant, points out that where an applicant applies for an
interdict pending vindicatory or quasi vindicatory
relief, it need
not allege irreparable loss, because there is a perception, which may
be rebutted by the respondent, that the inquiry
is irrigable, and the
applicant need not show that it has no other remedy –
Fedsure
Life Assurance v Worldwide African Internet Holdings (Pty) Ltd
2003
(3) SA 268
(W).
[11] Mr Buys, for the
respondent, says the applicants’
prima facie
claim is
open to serious doubt because the respondent disputes the alleged
breaches of the instalment sale agreement and the restricting
agreement.
[12] As to the balance of
convenience, Mr Roux says the court must weigh the prejudice of the
respective parties. Mr Roux says the
respondent does not disclose
when the comprehensive insurance policy was taken out. He further
points out that the outstanding
balance owing on the contract exceeds
the retail value of the vehicle. The policy which the respondent
attaches to its rejoinder
was taken out on 15 August 2013. There is a
monthly premium of R49,34 for “credit shortfall”. That
term is not defined
in the attached documents. The debt claimed by
applicant/plaintiff is R678 418,21 plus interest at 12,001% from
3 October
2010. The purchase price of this vehicle on 26 June 2006
was R639 600. That was 6 years ago. I would be surprised if the
present
value is more than R300 000. I would be equally
surprised if the “credit insurance” pays over R300 000
on
this contract. It was up to the respondent to allege on acceptable
grounds that the policy will cover such amounts. On the face
of it
the policy will not cover such loss. The respondent alleges that he
uses the vehicle only for business purposes (page 50
subsection 4.6).
The insurance policy “RJ1” states the use as “private”.
In the same document the respondent
says he is retired and not
self-employed.
Credit insurance
normally means a policy on the life of the debtor or other insurance
to help the debtor comply with the contract. Here the applicant
alleges a breach, and a huge amended arrears. Policies normally do
not cater for breach of contract, and the respondent did not
placed
facts before the court form which it can be inferred that the
insurance will pay out the full debt if the car is lost, stolen
or
destroyed.
[13] The vehicle is
differentiating merely by the passage of time. The respondent has
already been placed under debt review. The
balloon payment of
R159 400 was due on 18 May 2011. That was not paid. According to
the Schedule of payments, the last payment
made by respondent was one
of R5 148,36 on 24 November 2011.
[14] As to cancellation,
the amended particulars of claim state that the agreement is
cancelled. The other basis for applicant’s
claim for an interim
interdict is the
REI VINDICATIO
. Respondent’s defence to
the
rei vindicatio
is that he has the right to possession in
terms of the agreement (
Buhm v Masondo
).
[15] As to the
apprehension of irreparable harm, Mr Roux refers to the insurance
with Outsurance, which schedule the respondent
attaches to his
rejoinder. He refers to the conflict as to whether respondent is
using the car privately or for business purposes.
On the papers it
seems as if respondent conducts business as an insurance broker,
according to the letterhead of the note he attaches
to the Answering
Affidavit (?). That would be a sufficient basis to repudiate.
Depreciation of the vehicle is not covered by the
insurance.
[16] Mr Buys, for
respondent, says the trial is set down for February 2014, and it
could be inappropriate to take the vehicle away
now.
[17] Mr Roux points out
that three months is a short period, and if the respondent is
successful at the trial which is highly unlikely,
he will get the
vehicle back.
[18] Mr Buys says this
argument has not been cancelled. The applicant is asking the court
for an order to declare that the cancellation
was effective (see
Sonia (Pty) Ltd v Wheeler
1958 (1) SA 555
(A) at 561A).
Mr Buys refers to
SA Taxi Securitisation (Pty) Ltd v Chesane
2010 (6) SA 557
(SGJ) para [23], where the court stated that the
contract had been properly cancelled and granted an order that the
vehicles be
delivered to the applicant (para [34]).
[19] Mr Buys says that
the contract imposes an obligation on the respondent to keep the
vehicle comprehensively insured. At present
there is a policy of
Outsurance in place, and he says applicant’s fears have been
addressed. He did not try to convince me
that the “credit
insurance” meant that Outsurance would pay any shortfall
between the value of the vehicle and the
outstanding balance. The
terms of the policy are not attached, and one does not know what
“credit insurance” means.
[20] In the circumstances
of this case the respondent must prove payment. He acknowledges that
the debt counsellors have not made
all payments to the applicant. The
last payment made by respondent reflected in the statement of the
applicant was made on 23 November
2011. The respondent attaches no
proof of further payments. The vehicle belongs to applicant and the
contract has been cancelled
in the amended particulars of claim. The
applicant is entitled to the relief it seeks, being delivering the
vehicle.
____________
A. KRUGER, J
6 August 2013
On behalf of the
plaintiff: Adv. A Vorster
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
defendant: Adv. P U Fischer SC
Instructed by:
State Attorney
BLOEMFONTEIN
/eb